Andrews, J. in

Brown V. Clark

77 New York, 369. - 1879.

We concur in the conclusion reached by the surrogate that the will was revoked by the subsequent marriage of the testatrix. It was the rule of the common law that the marriage of a woman operated as an absolute revocation of her prior will. Force and Hembley's Case, 4 Co. 61. The reason of the rule is stated by Lord Chancellor Thurlow in Hodsden v. Lloyd, 2 Bro. Ch. 534. He says: " It is contrary to the nature of the instrument which must be ambulatory during the life of the testatrix; and as by the marriage she disables herself from making any other will, this instrument ceases to be of that sort, and must be void." The rule that the marriage of 3. feme sole revoked her will was made a part of the statute law of this State by the Revised Statutes. 2 R. S. 64, § 44. The language of the statute that the will of an unmarried woman shall be deemed revoked by her subsequent marriage is the declaration of an absolute rule. The statute does not make the marriage a presumptive revocation which may be rebutted by proof of a contrary intention, but makes it operate eo instanti as a revocation. 4 Kent, 528. It is claimed by the contestants that the testamentary capacity conferred upon married women by the recent statutes in this State takes away the reason of the rule of the common law, and that upon the maxim cessante ratione legis, cessat lex ipsa, the rule should be deemed to be abrogated. Upon the same ground it might have been urged at common law that the marriage of a feme sole should only be deemed a revocation or suspension of her prior will during the marriage, and that when the woman's testamentary capacity was restored by the death of her husband, leaving her surviving, the will should be revived; but the contrary was well settled. Force and Hembley's Case, 1 Jarman, 106; 4 Kent, 598. But the courts cannot dispense with a statutory rule because it may appear that the policy upon which it was established has ceased. The married women acts confer testamentary capacity upon married women, but they do not undertake to interfere with or abrogate the statute prescribing the effect of marriage as a revocation. It was quite consistent that the Legislature should have intended to leave the statute of 1830 in force, although the new statutes took away the reason upon which it was based. The Legislature may have deemed it proper to continue it for the reason that the new relation created by the marriage would be likely to induce a change of testamentary intention, and that a disposition by a married woman of her property by will should depend upon a new testamentary act after the marriage.

IV. Married woman's separate estate and her power to control and dispose of same.

Jaques V. Trustees, Etc

17 Johnson (N. Y.), 548. - 1820. [Reported herein at p. 93.]

Pullen V. Rianhard

1 Wharton (Pa.), 514. - 1836. [Reported herein at p. 95.]

Fears V. Brooks

12 Georgia, 195. - r852, [Reported herein at p. 571.]